Court switches, will hear detainee cases

Posted Fri, June 29th, 2007 12:03 pm by Lyle Denniston

UPDATE to 12:50 p.m.

In a startling turn of events in the legal combat over the war on terrorism, the Supreme Court on Friday agreed to reconsider the appeals in the Guantanamo Bay detainee cases. It vacated its April 2 order denying review of the two packets of cases. The Court then granted review, consolidated the cases, and said they would be heard in a one-hour argument in the new Term starting Oct. 1. Such a switch by the Court — from denial to rehearing and new argument and decision — may not have occurred since 1947, in Hickman v. Taylor, 329 U.S. 495, legal sources said Friday.

The order also said that new briefs will be sought, after the D.C. Circuit rules in pending cases on how judicial review is to work for detainees under the Detainee Treatment Act of 2005. The cases to be reheard by the Supreme Court are Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). In those cases, the D.C. Circuit ruled on Feb. 20 that the Military Commissions Act of 2006 had stripped detainees of their rights to bring habeas challenges to their confinement. That is the ruling that the Supreme Court left intact in April, but now will move forward to review.

Under the Court’s Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as “enemy combatants.”

Friday’s order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. (It is a fair assumption that Chief Justice John G. Roberts, Jr., was not in favor of rehearing; in an in-chambers order he issued on an earlier procedural matter in the detainees cases [applications 06A1001 and 06A1002] on April 26, Roberts opined that “possible court action” in the D.C. Circuit Court would not be enough to justify a grant of review in the face of the April 2 denial.)

Under the Court’s rules, a rehearing is granted only if there has been a change in “intervening circumstances of a substantial or controlling effect” or if counsel can cite “substantial grounds not previously presented.”

The new order did not state what changes had come about since the denial in April. The detainees’ lawyers, in their rehearing petition, had said that the unfolding of the review process in the D.C. Circuit Court would soon provide them with an argument for rehearing, since the process would be shown to be inadequate. More recently, the detainees’ lawyers had told the Court that information from inside the Pentagon detainee-review process confirmed their claim that the process was a “sham.”

It is unclear at this point just when the Court’s new review will unfold. The D.C. Circuit on May 15 heard oral argument on the procedures it will follow in review under DTA of “combatant status review tribunal” decisions to continue holding detainees at the U.S. military prison in Cuba.

The Circuit Court, however, was already moving with some dispatch to resolve those cases, because the first of the actual appeals in a DTA case is under a briefing schedule beginning on July 16, with an oral argument set for Sept. 27 That is the case of Paracha v. Bush (06-1038). (The Paracha case is also on its way to the Supreme Court, on the same questions about detainee legal rights as in Boumediene and Al Odah, with an appeal likely to be filed early in July.)

Once the D.C. Circuit has ruled, that decision, the Supreme Court said Friday, “would be of material assistance” to the Justices. With the Circuit Court ruling in hand, the Supreme Court will call for new briefs in the Boumediene and Al Odah cases. Conceivably, a briefing schedule could be completed this summer, and oral argument could be held early in the new Term, if the cases were to be expedited, as might be expected.

Although the Justices may not have been technically aware of other developments, activities in other detainee cases may well be affected by the grant of review in Boumediene and Al Odah. The Fourth Circuit Court is considering a government request to rehear en banc a panel decision there barring the military from detaining any civilian captured inside the U.S. as a terrorism suspect (Al-Marri v. Wright, Circuit docket 06-7427), and the D.C. Circuit is considering a request for initial en banc review of a case involving a Guantanamo detainee who is facing a war crimes trial before a military commission (Hamdan v. Gates, Circuit docket 07-5042). In addition, several District Court judges in Washington, D.C., are considering whether to dismiss other detainee habeas cases on the basis of the D.C. Circuit ruling that is at issue in Boumediene and Al Odah.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 16, 2018

Blatt, Hasenmiller, Leibsker & Moore, LLC v. Oliva (1) Whether good faith reliance on controlling circuit precedent, prior to any retroactive change in that law, is an unintentional “bona fide error” and a procedure “reasonably adapted to avoid error” within the meaning of the “bona fide error” defense in the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k(c); and (2) whether the due process clause prohibits punishment for conduct that was lawful when committed, but later prohibited by a retroactive change of law.

All Nippon Airways v. Wortman (1) Whether the filed-rate doctrine—which the Supreme Court firmly established in Keogh v. Chicago & Northwest Railway Co. and reaffirmed in Square D Co. v. Niagara Frontier Tariff Bureau, Inc.—still applies where rates are filed with a federal agency pursuant to a statutory regulatory scheme (as held by the U.S. Courts of Appeals for the 1st, 2nd, and 7th Circuits), or whether it no longer applies to such rates if a court finds the agency lacks sufficient “practical ability” to regulate those rates (as held by the U.S. Court of Appeals for the 9th Circuit below); and (2) whether, and to what extent, the filed-rate doctrine applies where a federal agency retains regulatory authority over rates, but chooses to exercise that authority by establishing a regulatory system, which it periodically revisits and revises, that does not require each rate to be literally filed with the agency.

Gonzalez-Badillo v. United States Whether, upon obtaining general consent to search a bag or other area, law enforcement may, consistent with the Fourth Amendment, “pry open” or otherwise cause intentional damages to personal property found within that might reasonably hold the object of the search.

Pioneer Centres Holding Company Stock Ownership Plan and Its Trustees v. Alerus Financial, N.A. Whether a plaintiff bears the full burden of establishing loss causation under 29 U.S.C. § 1109(a), which allows an employee plan to recover for “any losses to the plan resulting from [a fiduciary's] breach of its duties” under ERISA, as the U.S. Courts of Appeals for the 6th, 9th, 10th, and 11th Circuits have held, or whether the burden shifts to the fiduciary to establish the absence of loss causation once the beneficiary makes a prima facie case by establishing breach of fiduciary duty and associated loss, as the U.S. Courts of Appeals for the 2nd, 4th, 5th, and 8th Circuits have held.

Starr International Company, Inc. v. United States Whether a private party with Article III standing may be barred from asserting constitutional claims for money damages against the federal government because of the equitable doctrine of “third-party prudential standing.”